HomeMy WebLinkAbout1987-2590.Smith.89-05-09EMPLOY& DELA COURONNE DEL’ONmRIO
CQMMISSION DE
REGLEMENT
DES GRIEFS
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SRTTLRBRNT BOARD
Between: OPSEU (Robert Smith)
N.V. Dissanayake - Vice-Chairperson J. Best - Member C. Linton - Member
- and -
The Crown in Right of Ontario (Ministry of Correctional Services)
Grievor
Employer
APPEARING POR R. Ross Wells THE GRIEVOR: Counsel Gowling & Henderson Barristers h Solicitors
APPEARING FOR D.W. Brown THE RBPLOYRR: M.M. Pleishman Crown Law Office (Civil) Ministry of the Attorney General
BEARING: October 31, 1988 November 1, 23, 1988 February 3, 20 and 27, 1989
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+ .5
5
2
The grievor, Mr. Robert Smith, was employed by the
Ministry of Correctional Services at the Guelph
Correctional Centre ("G.C.C. ") as Maintenance Foreman.
As a result of a complaint by a former inmate, Mr. Donald
Frost, the Guelph Police seized a number of items of
furniture from Smith's home and from a restaurant in
Guelph owned and operated by him. Subsequently he was
charged under the Criminal Code with theft under S
1,ooo.oo. When the Ministry was informed of these
charges. by letter dated~ .January I, 1987, the
Superintendent of the G.C.C., Mr. L. Nelmes, suspended
the grievor for 5 days pending an internal investigation
report. By letters dated January 13, 1988, and February
8, 1988, the suspension was extended by the Regional
Director Mr. V.J. Crew for two further periods of 20 days
each. By letter dated February 5, 1988, the grievor was
required to attend a discipline meeting on February 18,
1988. Following the meeting, which the grievor attended
with a union representative, the Superintendent
discharged the grievor by the following letter dated -. . .
February 22, 198~&
Your will recall we met in my office at 1400
hours on Thursday, February 18th. 1988. to discuss the allegations set out in an earlier
letter to you (February 5), and to provide you
with every opportunity to respond. Also
3
present at the meeting was your staff
representative, Mr. J. Albrecht.
Unfortunately, neither YOU nor your
representative were able to make any comments
on the allegations, and you chose to say
nothing. Your reasoning I believe had to do
with the timing being inappropriate, and that
it may be more advantageous sometime in the
future to respond to ~the allegations. I
impressed on you the importance of a response,
and described the options that were open to me
once the meeting was terminated. I also
distinguished between the internal aspects of
the matter under scrutiny, and the continuing
external process, suggesting that from a
Ministry perspective, it was essential the
allegations made be responded to. After a
brief discussion, in private, with your
representative, you remained adamant that our
meeting was not going to address the
allegations, and we parted company having
failed to deal with the issues.
Your silence has created a very difficult
situation that unfortunately can only serve to
heighten the seriousness with which the
allegations must be viewed. The meeting was
your opportunity to explain your perspective
on assertions that.you:
a) met with an ex-inmate in the City of
Guelph without the approval of
myself, and
b) YOU acquired certain items of
furniture and/or furnishings,
manufactured in the institutional
Maintenance Shop using institutional
equipment and/or materials, for your
own personal use without my
approval. This being a misuse of
Government property andtgr services
for purposes other than Government
business.
Failure to comment on the above leaves me with
no alternative but to exercise my delegated
powers under Section 23 (1) of the Public
Service Act. In view of the fact that you
were not able to refute the allegations made,
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I am, for cause, dismissing YOU from
employment with the Guelph Correctional Centre
and the Ministry of Correctional Services, as
empowered under Section 22 (3) of the Public
Service Act. .The date of your dismissai will
take effect from Friday, February 26th, 1988.
During the course of the hearing in this matter,
Counsel for the Employer advised the Board that the
Employer was no longer relying on the alleged
unauthorised meeting with an ex-inmate as grounds for
discipline. Therefore, the remaining allegation is that
referred to in item (b) in the discharge letter. In a
nutshell, the Employer's case is that the grievor used
inmates ' labour, and/or materials, equipment and
premises belonging to the Ministry, to manufacture a
number of items for his personal use and that such
conduct is just cause for his discharge. The items in
question, an oak rocking horse, an oak dresser, an oak
crib, two lexan shelves, two long arborite cabinets, and
a tray holder cabinet on casters, were ali produced at
the hearing. There is agreement to the extent that all
of these items were produced at the G,C.C.'s carpentry
shop to varying degrees of completeness. The dresser,
crib and rocking horse were seized by"ithe Police from
the grievor's home and the other items from his
restaurant.
5
We do not intend to set out in detail all of the
evidence adduced over a number of days of hearing. The
criminal proceedings were disposed of during the course
of the hearing before this Board. The Board was advised
that the grievor was acquitted, but we are not privy to
any reasons the court may have set out.
As Maintenance Foreman, the grievor had
responsibility, inter alia, for supervising the
activities of the carpentry shop located within the
G.C.C. The grievor had 3 or 4 employees working under
him. In addition, at any given time he would supervise
15 - 18 inmates working in work gangs under a "gang
boss". The inmates worked in the carpentry shop as part
of the. vocational training programme undertaken by the
G.C.C. For their labour, the inmates only received a
nominai incentive allowance.
For the use of the carpentry shop, the Ministry
maintained a stock of commonly used material, such as
lumber, wood, trim, lexan,paint, screws‘;;nails etc., and
also had tools commonly used in the carpentry trade. As
stocks depleted, they were replaced. In addiction,
special orders were made by the grievor for specific
projects. There is no recording or control system of
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the amount of material used from stock, except where
stocks are specifically ordered for a particular
project.
The grievor reported to the Maintenance co-
ordinator, Mr. R.J. Stainer. Mr. Stainer retired from
the G.C.C. in August, 1987, but was called as a witness
for the Employer. Mr. Stainer was a member of the most
senior management committee at the G.C. C., known as
the Supervisory Committee. Of approximately 35 members
of management at the G.C.C., only 7 or 8 (including the
Superintendent) were members of this committee, which
was the ultimate decision making body within the G.C.C.
He testified that in the spring of 1987 he observed an
oak baby crib and an oak dresser being built in the
carpentry shop. The grievor informed him that he was
making these as a surprise gift for his wife, who was
pregnant at the time. Mr. Stainer testified that he was
initially "angry" that the grievor did not seek
permission from him before making items for personal
use, but that he decided to "overlook" it. He
instructed the grievor to remove the ‘crib and dresser
from the carpentry shop. According to the grievor, Mr.
Stainer's initial reaction was one of surprise at the
high quality of workmanship, rather than one of anger.
7
According to Mr. Stainer, a few weeks later, the
grievor asked him whether he would like anything to be
made for him and that he replied that he would iike to
give his wife a mahogany china cabinet. According to
the grievor, it was Mr. Stainer who on his own initiative
approached him and inquired if the grievor would make a
china cabinet. In any event, Mr. Stainer provided the
required measurements. The grievor purchased the
mahogany, and was reimbursed by Mr. Stainer for the cost.
Mr. Stainer provided the glass. The china cabinet was
made by the grievor and the inmate Mr. Frost. Upon
completion of the project, Mr. Stainer gave Xr. Frost two
jars of instant coffee.
One of the contentious issues here is as to where
the material for the various items came from. The
Employer fiied in evidence copies of a directive dated
September 12, 1983 and a standing order dated June 1987,
both of which contained the following prohibition:
No employee shall: .I . .
- Take or receive for his own use -or for the
use of any other person, any stores, or
supplies, (including government property considered scrap), purchased for or supplied
to any institution without the approval of the
Superintendent.
i
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However, Mr. Nelms agreed that through inadvertence
copies of the standing order and the direciive had not
been sent to the grievor. Nevertheless, the grievor
agreed that even without being aware of these documents,
he understood that it would be improper for an employee
to utilise ministry property for personal gain. His
position is that he did not use any material belonging
to the ministry in manufacturing any of the items in
question.
The grievor testified as to the source of various
materials that went into the items. Some of his
evidence was corroborated by individuals who supplied
the material. To the extent that this evidence stands
uncontradicted, we do not propose to set it out in
detail. As far as materials are concerned there are
only a few areas in dispute. The first is the oak that
was used to make the rocking horse. Mr. Frost testified
that the oak wood used to build the horse came from the
parts cut off from pews in a chapel located at the
G.C.C. This scrap had been left in the.,~ztorage room for
use in the carpentry shop. The grievor on the other hand
testified that he obtained two large oak desks from an
acquaintance which he dismantled at home. He brought
some of the wood to the carpentry shop and stored it in
3
the storage room in a separate pile. It was this wood
that was used to make the rocking horse. It is clear
that Mr. Frost believed that everything stored in the
storage room belonged to the Ministry. He was not aware
that the grievor had stored some of his own material in
the storage room. Thus, he testified that the mahogany
wood for Mr. Stainer's china cabinet, belonged to the
Ministry because he obtained that wood also from the
same storage room. However, it has been established
beyond doubt that the grievor purchased that wood from
a Beaver Lumber store and stored it in that room.
Therefore it is likely that Mr. Frost assumed that the
oak he obtained from the storage room to make the
rocking horse was scrap from the pews. In the
circumstances, Mr. Frost's evidence as to the source of
the oak wood for the rocking horse is unreiiable and we
prefer the grievor's specific evidence that the materiai
belonged to him.
The grievor testified that not long after he
commenced employment at the G.C.C. he was assigned to
"truck picket duty", which involved..;patrolling the
institution's grounds in a truck. While on this job, he
happened to drive behind a smoke 'house (used for
training in tear gas use) where a quarry and a dump are
located. From his truck he observed large sheets of what
.
10
looked iike glass in the dump. He investigated and
found that the sheets were lexan. He felt that he can
put this material to some use and retrieved lo-12 large
pieces of lexan, put it in the Ministry truck and drove
to the parking lot where he transferred the goods on to
his own truck. It was his evidence that he used this
lexan material to build the two lexan shelves. While
the evidence is that the storage area always had a
supply of lexan, there is nothing in the evidence from
which the Board can conclude that the shelves were
constructed from that material as opposed to the lexan
retrieved from the dump. Unless there is a prohibition
which is specifically brought to the attention of the
employees, it is not reasonable for the Board to
conclude that an employee ought to have known that it is
improper to retrieve what in effect is garbage from a
dump for personal use. We realize that the Ministry's
directive and standing order prohibited an employee from
putting "scrap" belonging to the Ministry to personal
use. However, "scrap" must mean usable left-over
material, like cut-off pieces of wood. What is
discarded in a dump is more appropriatqly described as
garbage or junk than scrap. In any event, even if the
lexan can be regarded as scrap within the meaning of the
prohibition, since the grievor was not made aware of the
prohibition, we cannot conclude that he engaged ins any
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wrong-doing by retrieving and using the material from)
the dump.
The crate in which the dresser alas transported out
of the G.C.C. was built by Mr. .?rost.from sheets of
plywood that had been left behind by an outside
contractor after being used for pouring concrete.
Again, assuming this material can properly be described
as "government property" within the meaning of the
prohibition, in the absence of a specific prohibition
which is brought to the employee's attention, the use of
the plywood discarded by a contractor cannot in our view
be the subject of discipline.
The other area of concern that caused the Employer
to discharge the grievor, is what was alleged to be a
"theft of time". There was evidence that two inmates,
Mr. Frost and Mr. Burbank, worked on the items of
furniture in question. There is a conflict in the
evidence as to the extent of Mr. Frost's involvement in
the construction of these items. However, we are
satisfied that Frost contributed signif?cantly, and it
is not necessary to determine the exact extent of his
involvement. Mr. Frost testified that he had in the
past made articles of furniture for the personal use of
a number of inmates and other members of staff for which
12
he sometimes got paid amounts of $ 25 to $ 50. He
specifically stated that he had made "quite a few"
rocking horses around Christmas 1986 and that it was
common knowledge in the carpentry shop. We heard no
evidence as to where the material for these items came
from. This evidence must be seen in light of the
Superintendent's evidence that the rules do not permit
the manufacture of any items for the personal use of
inmates or of staff members. While the Superintendent
may well have been unaware that it happened, there is no
question that it was not an uncommon occurrence. In
fact, Mr. Stainer was aware that items were created in
the shop for the personal use of inmates and he
testified that he had no trouble with that, as long as
the items made were not small items which are
concealable easily.
In relation to the alleged theft of time, Mr.
Stainer's testimony is of major significance. He
testified that the supervisors in the carpentry shop
(which includes the grievor) have been issued repeated
memoranda to keep the inmates busy as much as possible,
because if they are not kept busy they have to be sent
back to their cells. It was the G.C.C.'s policy that'it
is preferable to have the inmates working in the shop
than being confined in their cells. However, not
i
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infrequently, there is not enough work within the
institution to keep all the inmates busy. In this
situation supervisors are encouraged to come up with a
make work project rather than send the inmates back to
their cells. The evidence indicates that the vast
majority of time spent by Mr. Frost on the grievor's
personal items was during his spare time, i.e. when he
had no other work and would otherwise have been sent
back to the cell. In addition, Frost worked on these
items during non-work hours, i.e. some evenings and a
few Saturdays. Mr. Stainer testified that as far as he
was aware the grievor used his own material to construct
the crib and the dresser, (which were the only personai
items he observed at the shop) and that therefore he had
no objection against the grievor using the labour of
inmates to make furniture for his personal use. He
testified that he assumed that inmates would also be
working on his china cabinet, but that was not a cause
for concern. In his own words, "we try to do our best
to make work because the correctional officers don't
like to baby sit the inmates. We have to try to find
something to occupy the inmates' time..,;It is up to the
foreman to find something for them. to do rather than
send them back to the floor."
14
The grievor testified in like manner that he had no
concern about using an inmate's labour for constructing
items for personal use, because that conformed to the
instructions he had received that as foreman, he had an
obligation to keep the inmates busy as much as possible
rather than send them back to their cells.
Since we have already concluded that the grievor
has not engaged in culpable conduct as far as material
is concerned, the remaining issue for the Board is,
whether in light of the overall evidence, the grievor
deserved to be disciplined for using inmates' time to
build items for his personal use. Counsel for the
Employer reiies on the perfectiy sensible generai
principle that "Two wrongs don't make a right", in
urging this Board to disregard the evidence that a
senior member of management, Mr. Stainer, condoned the
alleged conduct and was in fact as guilty a* the
grievor. If the evidence indicated some kind of
conspiracy between Mr. Stainer and the grievor, i.e.
that Mr. Stainer will overlook the grievor's activity "~.&
provided the grievor made a china cabinet for him,
counsel's submission would be well founded. Likewise,
counsel's position would be supportable if the grievor
ought to have to known that, despite the supervisor's
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condonation and participation in the conduct, he was
engaging in improper conduct for which he is liable to
be discipiined. However, that is not the case here.
There is no indication in the evidence of any "deal"
between Mr. Stainer and the grievor to jointiy benefit
from some unlawful activity. What the evidence does
indicate is that through common practice openly condoned
(and encouraged) by at least one member of senior
management, the grievor was reasonably led to believe
that his conduct was acceptable. In light of the
evidence that the grievor had instructions to make work
for the inmates, that items for personal use had been
made in the past openly and that a senior member of
management did not express any concern about that
activity, we cannot conclude that the grievor ought to
have reasonably known that it was improper for him to
use the labour of inmates for making items of furniture
for his personal use. In the particular circumstances,
the grievor had every reason to believe that his
activity was acceptable to management and would not be
visited by discipline.
.' .-
In our view, a general practice has prevailed at
the G.C.C. whereby the use of inmates labour for
personal gain has been seen by supervisors as
acceptable. Mr. Nelmes. who came to the G.C.C. as
16
Superintendent only in May 1986 may well have been
unaware of these practices. The Board has no quarrel
whatsoever with his disapprovai of the practice.
However, what he cannot do is to single out the grievor
for discharge, simply because his was the first case
that came to his attention. What he is entitled to do,
if he has not already done so. is to give clear
instructions to the management at G.C.C. to make all
employees aware of the rules he expects to be followed
and to enforce those rules on an on-going basis. Having
failed to do so, Mr. Nelmes is not entitled to make an
example of the grievor, as a means initiating a change
in the practice which had prevailed previously.
Counsel for the Employer also made reference to the
use of ministry premises, tools, and equipment as
grounds for discipline. On the basis of the evidence,
however, we cannot conclude that in the circumstances,
the grievor would have had reasonable cause to believe
that it was any less acceptable to management than the
use of an inmate's time. Therefore the use of ministry
premises, tools, and equipment for personal gain cannot i
be the basis for discipline either.
17
It follows from the foregoing that the Employer has
failed to establish just cause for disciplining the
grievor. The allegations against the grievor are very
serious and in the nature of criminal conduct. In this
situation, while the Employer's onus remains one of
"balance of probabilities", it must adduce clear and
cogent evidence to prove its allegations. The evidence
before us falls far short of that standard.
That brings us to the question of remedy. Counsel
for the Employer submits that even if the Board finds,
as it has, that the employer failed to establish just
cause, in the particular facts of this case the Board
should not award the grievor compensation for lost
wages. Counsel submits that the Employer discharged the
grievor on the basis of the allegations of which it vas
made aware and the grievor's refusal to provide any
statement or explanation. He points. out that the
Employer has a special responsibility to ensure that its
employee s set an example to the inmates about honesty
and that since the grievor had been +arged with the
criminal offence of theft, it was not possible to
continue his employment in the absence of an explanation
by the grievor. The Employer either had to suspend him
indefinitely or discharge him. It was forced to make
18
its decision without receiving any information from the
grievor. Counsel conceded that where a grievor is also
the subject of criminal charges, it is common for the
grievor to not make any statementto his Employer. He
also recognizes the well known right "to remain silent".
However, it is his position that the grievor's refusal
to say absolutely anything left the Employer at a serious
disadvantage of having to make a decision without proper
information. The Employer was thus forced to make an
uninformed decision. For an arbitrator to reinstate the
grievor with fuli compensation in these circumstances
imposes a substantial and unfair financial burden on the
Employer.
The decision in Re Toronto East General Hosoital
&, (1975) 9 L.A.C. (2d) 311 (Beatty) at 314-316,
provides a useful discussion on an employee's obligation
to provide an explanation:
When one reviews the authorities noted
above, which were cited to this board, there
can be no dispute that arbitrators have in
fact recognised that in certain circumstances
an employee may be disciplined for failing to
provide an adequate explanation for certain
facts or circumstances when requested to do so
by his employer. To precisely delrneate what
circumstances must prevail before an employee
has an obligation to provide such an
explanation or indeed what nature of explanation is required to be offered by the
employee we need not and can not conclusively
determine. However a number of comments can
and should be made with respect to each of
these issues.
:
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In the first place it is manifest that an
employee may not be disciplined for failing or
refusing to provide his employer with an
explanation to clarify any set of
circumstances which are inquired of by the
employer. In all of the cases referred to us,
the onus said to be borne by an employee to
provide an explanation is in circumstances
consistent with his having stolen the
property, his,being in possession of stolen
property or his having converted the property
to his own use. In such serious and grave
circumstances we would agree there is a sound
basis for the employee being obliged, where he
can, to offer some explanation for or
elucidation of his being in possession of
property which is manifestly not his.
Although such a requirement may well run
against what are properly considered basic and
fundamental principles of our system of
criminal jurisprudence, in the context in
which arbitrators or adjudicating there are additional considerations which transcend such
basic tenets. Very simply, and in sharp
distinction to the criminal law context, we
are here concerned with an employment
relationship the continuation of which, to a
larger degree, is premised on the good faith,
mutual trust and respect of the parties to
this reiationship. Where in fact extreme
circumstances exist such as those which
prevail in the case before us or the other
cases referred to, which viewed reasonably,
call into doubt or jeopardize one of the bases
of that relationship, the employee is, we
believe, required to offer as best he can some
explanation of those circumstances when
requested to do so by his employer. Failure
to do so strikes at one of the foundations of
this continuing and consensual relationship
and will, as the reported awards attest,
justify disciplinary action b.eing taken against that employee. Wi tii3.n those circumscribed limits, which we find embrace
the facts before us, we would agree the
employee has an obligation to respond as best
he can to his employer's inquiry.
As to the nature of the explanation that is required to be given in such circumstances
much more difficult considerations prevail.
20
It is obvious, as Mr. Dunn argued, that in
certain cases the employee will simply be
incapabie of offering any adequate expianation
for the circumstances inquired of by the employer. Such would be the case if for
example other employees, unknown to the grievor, had as a practical joke "pianted" the
property in his coat pockets. Further, where in the kinds of extreme circumstances where
some exnlanation is mronerlv and justifiably
demanded bv the emDlover.. it must be recoanized that an emolovee may in fact be
liable to subseauent criminal orosecution end
because a self incriminatory admission of
auilt made to his emolover micrht, in the
proper circumstances, be used aaainst him one
must be circumsmct that in obliaina en employee to offer some exmlanation one is not
preiudicina his riahts et the subseauent
prosecution should it arise. In short to precisely define the circumstances under which
an employee is obliged to offer some
explanation for a set of circumstances and
then to delineate what must be offered in that
explanation which will satisfy that obligation
is a task fraught with difficulty and as
previous boards have expressly recognised
should not be likely undertaken by boards of
arbitration, see Re Int'l Chemical Vorkers,
Local 279 and Rexall Drua Co. Ltd., supra, at
P- 345. By way of illustration it may well be
that in the proper case a statement by the
employee simply denying knowledge of or responsibility or the circumstances described
by the employer will be completely adequate to
discharge his responsibility uniess the employer is possessed of some information
which can affirmatively refute such claims.
Suffice it to say then, for the reasons given,
arbitrators. should be cautious in establishing
in the abstract the circumstances'under which
an employee owes an obligation of explanation
to his employer and what the nature of that
explanation must be. Whether an obligation of
explanation in fact arises and what precisely
the nature of the obligation is will vary
dramatically with the facts of each case and accordingly each case ultimately must be determined on its own merits.
(emphasis added)
21
Having set out the general principles, the Board in
Toronto East General Hospital considered the evidence
before it. The grievor, when confronted had made
certain remarks, and beyond that failed to explain how
six cans of juice belonging to the Employer came to be
in his coat pockets. From the failure to provide an
explanation, the Board inferred that the grievor had
misappropriated the property in question.
Turning to the case before us, at the time the
grievor was confronted, he had already been charged by
the Police. Therefore, arbitrator Beatty's caution that
"one must be circumspect that in obliging an employee to
offer some explanation, one is not prejudicing his
rights at the subsequent prosecution . ..(I applies with
full force. The Employer would have been able to make
a more informed decision had the grievor elected to
discuss the allegations. However any concern about any
prejudice the Employer may have suffered must, in our
view, give way to the grievor's right to remain silent.
Although the criminal and arbitral processes are
distinct, there is no assurance to the grievor that 'i
whatever he divulges to his Employer will not be later
used against him at the criminal trial. The Employer
has failed to establish any wrong-doing by the grievor
that would justify any discipline. To accept the
22
Employer counsei's submission will be to nevertheless
penalize the grievor, aibeit only monetarily, soleiy
because he exercised his right to remain silent on the
specific advice of his legal counsel. That the Board is
not prepared to do.
It must also be noted that, unlike in Toronto East
General HosDital (-1, here it is not possible to
infer any "guilt" from the grievor's refusal to provide
an explanation. Unlike the grievor in that case who
simply faiied to provide an explanation, the grievor
before us made it ciear to the Suprrientendent that he
was so refusing on the advice of his defence counsel in
the criminal trial.
For the foregoing reasons the Board is of the view
that there is no reason to restrict the remedy which the
grievor would have been otherwise entitled to.
Accordingly, the Employer shall reinstate the grievor in
his former job with full compensation and without loss
of seniority.
The Board remains seized in the event the parties
cannot agree on the implementation of this award.
23
Dated this 9th. day of w=,y, 1989 at Hamilton, Ontario
Nimal V. Dissanayake
Vice-Chairperson
j:::&/&/ j&TO/
J. Best
Member -
"I Dissent"
C. Linton
Member
.’ . .
DISSENT
I have read the draft award of the Vice Chai- in this matter and,
although I agree that the employer ultimately failed to establish just cause
for discharging the grievor, I do not agree that the grievor should benefit
from his choice to "remain silent". This failure to discharge his responsibility,
given the circumstances, to his employer at the time the decision was made,
placed the G.C.C. in the position of having no alternative but to terminate
his employment.
The grievor was charged with a work-related criminal offence and,
absent any explanation from the grievor or the Union, the G.C.C. had no option
but to discharge the grievor. The nature of the charge was such that it posed
a sufficiently serious and inmediate risk to the business concerns of the
employer. The charge of theft would substantially undermine Mr. Smith's effec-
tiveness in the workplace, as the Ministry of Correctional Services must certainly
have the right to expect that supervisors, charged with interacting wirh
incarcerated persons, will not engage in criminal activities. At the time the
decision was made, the grievor had been charged by the Guelph Police with an
offence totally linked to the employment relationship. The grievor's failure
to inform his employer of the circumstances surrounding the allegations carried
with it the probability that the risk of guilt would present them with no choice
but to remove him from the workplace.
With respect to the quoted decision in re Toronto East General Hospital
Inc., (f975) 9 IX (2nd) 311 (Beatty) at 314-316, Mr. Beatty, in reference to
cases referred to that Board, states:
"the onus said to be home by an employee to provide an
explanation is in circumstances consistent with his having
stolen the property . . . . . . . . . or his having converted the
property to his own use. In such serious and grave cir-
cumstances we would agree that,there is a sound basis for
the employee being obliged, where he can, to offer soms
explanation for or elucidation of hi$ being in possession
of property which is manifestly not his . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Very simply,and in sharp distinction to the criminal law
context, we are here concerned with an employment relation-
ship the continuation of which, to a larger degree, is
premised on good faith, mutual trust and respect of the
parties to this relationship. Where in fact extreme circumstances exist . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . / . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..I..........
which viewed reasonably, call into doubt or jeopardise one
. ../2
in -2-
of the bases of that relationship, the employee is, we believe,
required to offer as best he can some explanation of those
circumstances when requested to do so by his employer."
It was agreed that the items were manufactured in the G.C.C.'s
Maintenance Shop using institutional equipment and, at the time the charges
were laid, Mr. Nelmes had reason to believe that the materials were the property
of G.C.C. and he personally had not granted permission for any of the alleged
activity. Absent an explanation from the grievor that the materials were his
and he believed that such activity was acceptable to management, albeit the
sanction was from a member of management who had retired, G.C.C.'s only option
was to discharge the grievor.
Mr. Eeatty's award also discusses the nature of the explanation that
is required and cautions against "self incriminatory" admissions of guilt.
Given the evidence, Mr. Smith's rights at a subsequent prosecution would not
have been "prejudiced" had he explained that the materials belonged to him and
that he believed his activity was acceptable to management. Mr. Batty's
illustration that, "simply denying knowledge of or responsibility for the
circumstances described by the employer will be completely adequate to discharge
his responsibility" might have been relevant in this case. With all due respect,
I cannot agree that the grievor's right to remain silent in the criminal process
discharges his responsibility to provide an explanation to his employer. Given
that there was a causal connection between the alleged offence and the employer's
business, the grievor owed an explanation to G.C.C.
For the above reasons, I would have reinstated Mr. Smith effective
from the date the G.C.C. was made aware of his acquittal, or he provided an
explanation, whichever first occurred.
All of which is respectfully submitted.
Carole Linton - Member